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Despite positive influence of ECtHR, clearer defences and caps on damages seen as necessary to combat chilling effect

Sep 5, 2014

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This article is part of our series “Notes from the Field: EU Defamation Laws and Journalism”, in which the International Press Institute (IPI) takes a closer look at the application of defamation law in EU countries, seeking to illustrate the practical consequences of these laws upon both individual journalists and the free flow of information necessary for democratic governance.

It was the kind of small-town political scandal that would scarcely raise an eyebrow in cities with bigger fish to fry. But when Jornal do Centro, a weekly newspaper in the central Portuguese town of Viseu, suggested in 2002 that a local courthouse’s donation of used furniture to charity was marred by favouritism, it apparently bit off more than it could chew. The court and the ‘lucky’ beneficiary that reportedly received nearly half of the pieces brought criminal defamation charges; the paper’s editor, together with the journalist who broke the story, were convicted and ordered to pay fines of €2,000 each.

Twelve years later, the European Court of Human Rights (ECtHR) finally gave Jornal do Centrothe last word. In strikingly straightforward terms, a seven-judge panel unanimously ruled in April 2014 that the Portuguese courts had violated the paper’s right to investigate and comment on matters of public interest.

It probably did not hurt that Jornal do Centro was represented by Francisco Teixeira da Mota, a Lisbon-based human-rights attorney and one of Portugal’s foremost experts on free expression and the law. The author of the books Freedom of Expression in Court (2013) and The European Court of Human Rights and Freedom of Expression – Portuguese Cases (2009), Teixeira da Mota has successfully defended the rights of Portuguese journalists targeted in defamation proceedings on numerous occasions before the ECtHR (among others, in Welsh and Silva Canha v. Portugal[2013], Público and others v. Portugal [2010] and Lopes Gomes da Silva v Portugal [2000]).

IPI’s Scott Griffen recently spoke to Teixeira da Mota about the value of the ECtHR in influencing national courts, the evolution of the right to free expression in Portugal, and the legal reforms needed to bring Portugal’s defamation laws in line with international standards.

IPI: Mr. Teixeira da Mota, how important has the ECtHR been for protecting the rights of the Portuguese media?

Teixeira da Mota: Very important. Over the years, the jurisprudence of the ECtHR has significantly changed the way Portuguese courts understand freedom of expression. Nowadays Portuguese courts rarely decide freedom of expression cases without referring to the ECtHR, even if they sometimes incorrectly apply ECtHR jurisprudence.

IPI: What are the main problems, if any, with the application of ECtHR and international principles on defamation and free expression in the Portuguese courts?

Teixeira da Mota: Portuguese courts traditionally placed a high value on the rights to honour and reputation and considered freedom of expression a second-class freedom compared to those rights. Even today there remains in many cases a tendency to place too much value on the words, image, and reputation of powerful figures when weighed against critical opinions about those figures. Courts continue, at times, to not distinguish between assertions of fact and value judgments, which obviously ends up harming freedom of expression.

IPI: Has the Portuguese courts’ approach to defamation cases evolved during your career? Do you see a positive trend?

There has definitely been an evolution among Portuguese courts in the sense of a better appreciation for freedom of expression and an acceptance of the jurisprudence of the ECtHR beginning with the condemnation of Portugal in the case Lopes Gomes da Silva v. Portugal(2000) and successive condemnations thereafter. The office of the Prosecutor General has produced a recommendation to this effect.

(Ed. Lopes Gomes da Silva concerned the application of a Portuguese journalist, Vicente Jorge Lopes Gomes da Silva, who had been convicted on appeal of criminally libelling a candidate for the Lisbon City Council in an opinion column, and ordered to pay a criminal fine as well as damages.)

IPI: How is the protection of reputation viewed in Portuguese society? Has this view changed over time?

Teixeira da Mota: Portuguese society has evolved in the sense indicated above, even though there are still powerful figures who are uncomfortable with freedom of expression when such expression is blunt or aggressive and relating to themselves. The Latin-Mediterranean concept of honour is quite broad…

IPI: According to IPI’s research, Portugal is among 20 EU countries in which defamation remains a criminal offence punishable by imprisonment. Does this special “criminal” nature pose a particular threat to freedom of expression?

Teixeira da Mota: It is a fact that the criminalisation of speech constitutes a threat and has a chilling effect, but the large damage amounts in civil cases can cause even greater fear among journalists and media companies, given that in the democratic era there has never been a conviction for defamation that resulted in actual incarceration.

IPI: In Portugal’s Criminal Code, defamation is more harshly punished when the offended party is a public official (Art. 184). Why was this provision included in the Code? Is it problematic in your view?

Teixeira da Mota: It is a clear and unfortunate indication of the authoritarian concept of power in Portugal and reinforces a restrictive vision of free expression that has always prevailed in Portuguese society.

IPI: What would you say are the most important reforms that need to be made to Portuguese defamation law, both criminal and civil, in order to meet modern standards?

Teixeira da Mota: It would be desirable for defamation to be decriminalised or, at least and for now, considering existing reality, to not provide for the possibility of imprisonment.

In civil cases, there should be clear rules in terms of possible defences. In Portugal, for example, there is a strand of opinion among the courts holding that in the case of a defamatory allegation [non-pecuniary] damages are owed – even if the allegation is true.

Limits should be established relative to the levels of [non-pecuniary] damages, as well as of material damages.

IPI: Is there enough awareness among journalists in Portugal about defamation laws? Is it important that journalists have at least a basic understanding about such laws?

Teixeira da Mota: Journalists normally learn about defamation laws when they have been accused [of defamation] or are defendants in a case. It is of certainly important that they have knowledge of existing laws but they also need to know about the rights and liberties [protected by] the ECtHR and the Constitution.

IPI: In July, the ECtHR Grand Chamber held a hearing in the case Delfi AS v. Estoniafollowing a chamber decision last year that said online media outlets had an active responsibility to remove defamatory user comments. You have expressed concern about that decision. If the ruling is upheld, what consequences could it have for freedom of expression online?

Teixeira da Mota: It seems to me that the decision of the ECtHR in that case did not strike the correct balance among the rights, duties, and behaviours in play given that Delfi removed the comments after being alerted to them. It seems to me that if the decision is confirmed by the Grand Chamber it will reduce the space of freedom of expression by causing a chilling and censoring effect among news outlets at the level of user comments, which in any event is already starting to occur.